GOPALRAO JAMDAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS first appeal has been filed by the appellants under Section 96 of Code of Civil Procedure, 1908 against the judgment and decree dated 12 -09 -2003 passed in Civil Suit No. 10 -A/03 by learned Third Additional District Judge, Gwalior dismissing the suit for declaration of title and declaring the order passed by the competent authority under Urban Land Ceiling and Regulation Act as void and ineffective being passed without affording any opportunity of hearing to the plaintiff. The brief facts of the case are that the plaintiff/appellants (original plaintiff Gopalrao Jamdar who has died during pendency of this appeal) is bhumiswami and in possession of agriculture land compromised in survey No. 2439, 2440, 2446, 2450, 2452, 2453, 2453/2, 2454, 2455, 2456, 2430 to 2438 admeasuring 10 bigha 19 biswa situated at Mauza Harkota, Taraganj Lashkar Gwalior. The suit land is agriculture property of the plaintiff since the time of erstwhile Estate of Gwalior in the name of plaintiff's father, thereafter in the name of plaintiff himself. The cremation of plaintiff ancestors took place at this land and Chhatriyas were also constructed in their remembrance. On 06 -04 -1998 certain persons come on spot took measurement of the subject land and they stated that the land was allotted by the Nazul Officer to Mahila Bal Vikas Department for the construction of hostel etc. and the permission for construction of road has also been given by the Municipal Corporation, Gwalior. This action of Nazul Officer was stated to have been taken on account of declaration of the said land to be surplus in a ceiling case. Plaintiff received no notice of the ceiling case. No land can be declared surplus without hearing him. Plaintiff still continued in possession of the suit land and the act of Nazul Officer is contrary to the provisions of Urban Land Ceiling and Regulation Act, therefore, the plaintiff filed the suit for declaration, however contended that the suit land is agriculture land and no master plan was enforced at the relevant time therefore, it was not vacant land under the Urban Land Ceiling and Regulation Act and could not have been declared surplus. It is further submitted that the mandatory provisions contained in Section 8, 9 and 10 of the said Act was not complied with, possession of the suit land has not been obtained by the competent authority from the plaintiff and possession of plaintiff continued till filing of the suit.

(2.) THE State Government in its written statement contended that the disputed land has been declared as Government land in the revenue record and it is entered as Government Urban Land. In the written statement it has been further contended that the disputed land was declared as surplus by the competent authority under Urban Land Ceiling and Regulation Act on 07 -07 -1997 in case No. 22/96 -97 and possession was obtained by Tahsildar Nazul. Thereafter, a piece of land admeasuring 130092 sq. ft. was allotted to M.P. Rajya Sahkari Awas Sangh Maryadit, Bhopal on 28 -11 -1998 and possession was delivered to it. Another piece of land area 32769 sq. ft., 25939 sq. ft. and 26615 sq. ft. were allotted to Adim Jati Kalyan Vibhag for Girls Hostel and Kanya Ashram and Manila Ashram Grin respectively and possession was delivered to them. The construction has been made by the allottees and thus the suit is liable to be dismissed.

(3.) DEFENDANT /respondent No. 3 in its written statement adopted the written statement of respondent No. 1 and in addition, it was contended that the competent authority under Urban Land Ceiling and Regulation Act was necessary party hence the suit suffers from non -joinder of necessary party. It is further contended that the plaintiff has preferred an appeal bearing No. 31/97 -98 under the Urban Land Ceiling and Regulation Act which has been dismissed on 17 -04 -2000. This order has attained finality and the civil suit is not maintainable to challenge the same. Further the civil suit is not maintainable for want of prayer of possession. It was further contended that the ceiling proceedings were validly conducted and the disputed land was declared surplus after giving opportunity of hearing to the holder. The objections were rejected on 30 -01 -1996. It is further contended by respondent No. 3 that the disputed land was deemed to be diverted as vacant land. It was governed by the provisions of M.P. Urban Land Ceiling and Regulation Act. Moreover, the master plan was also in force. It was further contended that a sum of Rs. 90,685/ - was deposited by the defendant in the office of the competent authority on 25 -08 -1999 which may be claimed by the plaintiff. The suit is also stated to be barred by limitation.